Amicus Curiae Brief — United States v. Lopez

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No.99-1260 ~—/ [ Bageamm Gort, 8.4 |

PILED |

Supreme Court of the United States, .:

——

a

OCTOBER TERM, 1994 ~~

UNITED STATES OF AMERICA,

~ Petitioner,

ALFONSO LOPEZ, JR.,

Respondent.

al

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE

NATIONAL CONFERENCE OF STATE LEGISLATURES,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL LEAGUE OF CITIES,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, AND

NATIONAL INSTITUTE OF

MUNICIPAL LAW OFFICERS, JOINED BY THE

NATIONAL SCHOOL BOARDS ASSOCIATION,

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

RARRY FRIEDMAN RICHARD RUDA *

\ ANDERBILT UNIVERSITY JAMES I. CROWLEY

SCHOOL OF LAW STATE AND LOCAL LEGAL CENTER

Twenty-first Avenue South 444 North Capitol Street, N.W.,

*Tashville, Tennessee 37209 Suite 345

615) 822-2154 Washington, D.C. 20001

Of Counsel (202) 484-4850

* Counsel of Record for the

Amici Curiae

WILSON - Epgs PRINTING Co.. Inc. - 789-0096 - WASHINGTON, D.C, 20001

QUESTION PRESENT” }

Whether the Commerce Clause of the <‘onstitution em-

powered Congress to enact 18 U.S.C. §922(q), which

makes it a federal offense to possess a firearm in or within

1000 feet of 2 school

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TABLE OF CONTENTS

TION PRESENTED

TABLE OF AUTHORITIES

INTEREST OF THE AMICI CURIAER

STATEMENT

SUMMARY OF ARGUMENT

ARGI

A

IMENT

The Constitution Grants Congress Only Limited

Authority To Define And Punish Criminal

Activity

The Commerce Clause Does Not Authorize Con

gress’s Enactment Of The Gun-Free School

Zones Act

The United States’ Standard Of Review Re

quires The Abdication Of Meaningful Judicial

Review And Conflates The Standard For Deter

mining The Validity Of Legislative Means With

That For Determining Whether Legislation Is

A Permissible End Of The Commerce Power

Because The Federalization Of Traditional State

Crimes Imposes Substantial Costs On The

Federal-State Balance And Rights Granted Un-

der State Law, Courts Properly Require Con-

gress To Show That Regulated Activity Has A

Substantial Effect On Interstate Commerce

CONCLUSION

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Page

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iv

TABLE OF AUTHORITIES

Cases Page

Atascadero State Hosp. v. Scanlon, 473 U.S. 234

ha ac a ea 9

Board of Ed. v. Rowley, 458 U.S. 176 (1982) -....... 22

City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983) ........... = a Mapa Bae 19

Cohens v. Virginia, 15 U.S. (6 Wheat.) 264

(1821 )............ Si Re BIRT a OOS Ge ce RCI a LA passim

Coleman v. Thompson, 111 S.Ct. 2546 (1991)... 9

Cooper v. California, 386 U.S. 58 (1967) ........... Ds 29

Cotton v. United States, 52 U.S. (11 How.) 229

|, EIA See SER CSTE are kN rae 10

Engle v. Isaac, 456 U.S. 107 (1982) ..........00...... 5, 10, 15-16

Epperson v. Arkansas, 393 U.S. 97 (1968) -....... 22

FCC v. Beach Communications, 113 S.Ct. 2096

| RRA ree At Bi Nea La 7,25

Fry v. United States, 421 U.S. 542 (1975) —........... 5,13

Garcia v. San Antonio Metro. Transit Auth., 469

8 6 6G | RS aS a Sa ee 9

Gregory v. Ashcroft, 111 S.Ct. 2895 (1991) .......... passim

Heart of Atlanta Motel, Inc. v. McClung, 379 U.S.

RI a a ce ee a as passim

Hodges v. United States, 203 U.S. 1 (1906)............ 12

Hodel v. Indiana, 452 U.S. 314 (1981) .....-......000.... 18

Hodel v. Virginia Surface Mining & Reclamation

Pp’ , Y g:' & fy. } Reem passim

INS v. Chadha, 462 U.S. 919 (19838) -............. peace 26

Katzenbach v. McClung, 379 U.S. 294 (1964) passim

Keller v. United States, 213 U.S. 138 (1909) _....... passim

Marbury v. Madison, 5 U.S. (1 Cranch) 137

EE sc batten cee ee ee rere piece. 30

Maryland v. Wirtz, 392 U.S. 183 (1968) -....0....2...... 6,13

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

(1. REE A ee cote ne ea ane SR a me passim

Oregon v. Hass, 420 U.S. 714 (1975) 20002... 29

Patterson v. New York, 432 U.S. 197 (1977) ......... 10

Perez v. United States, 402 U.S. 146 (1971) ........... passim

Rez v. Curl, 93 Eng. Rep. 849 (K.B. 1727) ............ 10

PruneYard Shopping Center v. Robins, 447 U.S. 74

V

TABLE OF AUTHORITIES—Continued

Page

Shaw v. Director of Pub. Prosecutions, 1962 App.

Cas. 220 (H.L. 1961) Cece 10

Sibron v. New York, 392 U.S. 40 (1968) _............... 29

Stirone v. United States, 361 U.S. 212 (1960) 14

United States v. Bass, 404 U.S. 336 (1971) ..12, 14, 22, 26

United States v. Britton, 108 U.S. 199 (1883) 10

United States v. Carolene Products Co., 304 U.S.

144 (1938) 6, 18, 21, 22

United States v. Coombs, 37 U.S. (12 Pet.) 72

(1838) passim

United States v. Darby, 312 U.S. 100 (1941) 12

United States v. Eaton, 12 S.Ct. 764 (1892) 10

United States v. Evans, 928 F.2d 858 (9th Cir.

1991) a luiidacaat 16

United States v. Five Gambling Devices, 346 U.S.

Ge RD cide eee ave ee 12

United States v. Wrightwood Dairy Co., 315 U.S.

110 (1942) 13

Wickard v. Filburn, 317 U.S. 111 (1942) passim

Constitutional Provisions

U.S. Const. amend. X : cnavemesie 9

U.S. Const. art. I, § 7 26

U.S. Const. art. I, § 8, cl. 6 Pe eI Ne eT AN 10

U.S. Const. art. I, § 8, cl. 10 Ae ey, 10

U.S. Const. art. I, § 8, cl. 14 10

8 Ry ee OD , Reena ee 10

U.S. Const. art. ITI, § 3 10

Statutes

Crime Control Act of 1990, Pub. L. No. 101-647,

He Rp | OMe

ae I ia seeciecenatitegneviccinedtanadnbonecien se ae “passim

Tex. Penal Code § 12.34 .................... oe RON Roe SRLS 3

Tex. Penal Code § 46.04 (a) (1) -2..2222222..-2eeee eee cece eeeeee ee 3

Other Authorities

Joel P. Bishop, Commentaries on the Criminal Law

(Williams S. Hein Co. 1986) (7th ed. 1982) ...... 10

eT

vi

TABLE OF AUTHORITIES—Continued

Page

Brennan, State Constitutions and the Protection of

Individual Rights, 90 Harv. L. Rev. 489 (1977).. 29

Buckley, Introduction—Federalism and the Scope

of the Federal Criminal Law, 26 Am. Crim. L.

7 me: me) ) ees 20

Budget of the United States Government: Fiscal

Year 1994 16

Henry J. Friendly, Federal Jurisdiction: A Gen-

, 2. eb: | omncnen . 27, 29

Gun-Free School Zones Act of 1990: Hearing ‘Be-

fore the Subcomm. on Crime of the House Comm.

on the Judiciary, 101st Cong., 2d Sess. (1990)... 15, 17,

27

H.R. Rep. No. 101-681(1), 101st Cong., 2d Sess.

(1990), reprinted in 1990 U.S.C.C.A.N. 6472... 6,15

Richard Latzer, State Constitutions and Criminal

A. CEE dscssadidddcicecidy cena _.....29, 29-30

Miner, Federal Courts, Federal Crimes, And Fed-

eralism, 10 Harv. J.L. & Pub. Pol’y 117 (1987) ..nassim

Nat’l L.J., Sept. 29, 1986 (Special Supplement) .... 29-30

George Richards, A Treatise on the Law of Insur-

pene Cae OE, TOD eccedicsindccasenmedaicanetes 16

Ruttenberg, The Limited Promise of Public Health

Methodologies To Prevent Youth Violence, 103

Sadie Ge: 0 OD Citececnecess ees oes 21

Report of The Federal Courts Study Committee

I Ri cvncscs chnosncecticisescblib metacee ae eee 27

The Federalist No. 45 (Isaac Kramnick ed. 1987) |

(J. Madison) SCS Pe EE ea TEE DU 8-9 |

The Federalist No. 51 (Isaac Kramnick ed. 1987)

as, NII sans ctitrssiosisssseta temic uameeiide atlases. 9

U.S. Bureau of the Census, Statistical Abstract of

the United States: 1993 (1993) _. ; 15

BRIEF OF THE

NATIONAL CONFERENCE OF STATE LEGISLATURES,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL LEAGUE OF CITIES,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, AND

NATIONAL INSTITUTE OF

MUNICIPAL LAW OFFICERS, JOINED BY THE

NATIONAL SCHOOL BOARDS ASSOCIATION,

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICI CURIAE

Amici National Conference of State Legislatures, Na-

tional Governors’ Association, National League of Cities,

National Association of Counties, International City/

County Management Association, and National Institute

of Municipal Law Officers (NCSL et al.) are organiza-

tions whose members include state and local governments

and officials throughout the United States. These amici

have a compelling interest in the legal issues that affect

state and local governments and in the proper working of

our federal system.

Amici NCSL et al. view with utmost seriousness the

problem posed by criminal behavior in our society, and

the tragedy of the possession and use of guns in schools.

Indeed, Texas has criminalized the possession of a gun in

a school since 1974, long before the Gun-Free School

Zones Act was enacted, and respondent was prosecuted

by state authorities under this state law before the federal

prosecution was commenced. Pet. App. 2a n.1.

There are, however, fundamental constitutional ques-

tions presented by this case that must be addressed despite

the sensitivity of the context in which they arise. It is

axiomatic that “our Constitution establishes a system of

dual sovereignty between the States and the Federal Gov-

ernment.” Gregory v. Ashcroft, 111 S.Ct. 2395, 2399

(1991). And while Congress’s power to regulate activity

under the commerce clause is without question very

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2

broad, it is not unlimited. See, e.g., Wickard v. Filburn,

317 U.S. 111, 125 (1942). When Congress legislates at

what are, at best, the outer limits of its commerce power,

meaningful judicial review of whether that exercise 1s

within Congress's delegated powers is essential if our

lederal system ts to be preserved.

Amici NCSL et al. are also concerned that the crowing

trend toward the unbounded federalization of what have

hitherto been state criminal offenses witl undermine the

working of our federal system in other ways. The identifi-

cation and proscription of criminal conduct has, since the

founding of our nauion, been one of the principal con-

cerns of ihe States. Shifting the focus of this lawmaking

from the States to Congress crodes essential features of

our federal system. See Gregory, 111 S.Ct. at 2399.

The National School Boards Association (NSBA) is a

federation of state school boards associations, representing

approximately 97,000 of the nation’s school board mem-

bers who, in turn, govern the schools attended by 97 per-

cent of all U.S. public school children. NSBA is deeply

concerned about violence and crime in and around the

schools and has recently published a guide on effective

methods to curb violence in public schools. But redun-

dant federal laws do not address the problem of violence

in the schools—they simply make administration of the

schools more difficult and could cause delays in bringing

perpetrators to justice.

Education in the nation’s public schools has long been

the function of state and local governments. Accordingly,

amicus NSBA is concerned with the United States’ reli-

ance on findings made in connection with legislation en-

acted under the spending power to support its argument

that education substantially affects interstate commerce.

Because state participation in spending programs is volun-

tary, such findings do not support expansive federal regu-

lation of the public schools under the commerce clause.

3

Because of the importance of these issues to amici and

their members. amici submit this brief to assist the Court

in its resolution of this case.’

STATEMENT

On March 10, 1992, respondent Alfonso Lopez, Jr., a

student at Edison High School in San Antonio, Texas,

arrived at school carrying a concealed .38 caliber hand-

gun. Acting on an anonymous tip, school officials con-

fronted Lopez, who admitted he was carrying the gun.

The officials seized the gun (which was not loaded) and

five bullets. Pet. App. 2a.

State authorities immediately charged Lopez with vio-

lating Section 46.04(a)(1) of the Texas Penal Code.

Like many similar state laws, this statute makes it a

felony for a person to go “on the premises of a school or

an educational institution” while carrying a firearm, and

carries a punishment of up to ten years imprisonment and

a $10,000 fine? Tex. Penal Code § 46.04(a)(1); id.

$12.34. The state charges were dismissed, however,

after a federal grand jury indicted Lopez for violating 18

U.S.C. § 922(q), the Gun-Free School Zones Act of

1990. Pet. App. 2a n.1.

The federal indictment did not allege that the firearm

Lopez possessed had any nexus to interstate commerce

and the United States conceded that Lopez’s conduct was

1 The parties have consented to the filing of this brief amicus

curiae. Letters indicating their consent have been filed with the

Clerk of the Court.

2 The brief amicus curiae of various members of Congress baldly

asserts that “[t]he Gun-Free School Zones Act represents the first

effort to address the growing crisis of guns in’ schools and the re-

lated problems of drugs and gang activity.” Br. Am. Cur. 16

Members of the U.S. Senate et al. 6 (citation omitted). In contrast

to the Gun-Free School Zones Act which was enacted in 1990, see

104 Stat. at 4968, Texas has proscribed the conduct charged here

for more than twenty years. See Tex. Penal Code § 46.04(a) (1).

Forty States have such laws. See Appendix hereto. Many of these

laws were enacted before the Gun-Free School Zones Act.

4

purely intrastate in nature. Pet. App. 50a-53a. More-

over, by its terms, Section 922(q) does not require that

the United States prove a nexus to interstate commerce.

See 18 U.S.C. § 922(q). Nonetheless, the district court

denied Lopez's motion to dismiss the indictment, reason-

ing that the Gun-Free School Zones Act was “a constitu-

tional exercise of Congress’ well-defined power to regulate

activities in an[d] affecting commerce.” Pet. App. 55a.

Thereafter, the court convicted Lopez and sentenced him

to six months imprisonment, to be followed by two years

of supervised release. Pet. App. 3a.

The court of appeals reversed. The court recognized

that under the commerce clause, Congress has the power

to regulate purely intrastate activity which has a sub-

stantial effect on commerce. See Pet. App. 37a-39a. The

court also recognized that this Court “has consistently

deferred to Congressional findings in this respect,” id. at

40a, and that “the courts must defer ‘if there is any

rational basis for’ the finding.” Jd. at 43a (citation

omitted). The court concluded, however, that it could

not “properly perform [its] duty to determine if there is

any rational basis for a Congressiona! finding if neither

the legislative history nor the statute itself reveals any

such relevant finding.” /d. at 44a.

The court also reasoned that in the absence of a find-

ing, “there is nothing to indicate that Congress itself

consciously fixed, as opposed to simply disregarded, the

boundary line between the commerce power and the re-

served power of the states.” Jd. Because “both the man-

agement of education, and the general control of simple

firearms possession by ordinary citizens, have traditionally

been a state responsibility and section 922(q) indisput-

ably represents a singular incursion by the Federal Gov-

ernment into territory occupied by the States[,]” id. at 45a,

findings were “necessary to demonstrate that such an ex-

ercise of power is within the scope of the Commerce

Clause.” Jd. at 48a. Because neither Section 922(q) it-

self, nor its legislative history, contains any findings that

the purely intrastate activity it proscribes substantially

5

affects interstate commerce, the court of appeals vacated

respondent’s conviction. /d. at 54a.

SUMMARY OF ARGUMENT

1. “{O]ur Constitution establishes a system of dual

sovereignty between the States and the Federal Govern-

ment[,]” granting to the latter only “limited powers.”

Gregory v. Ashcroft, 111 S.Ct. 2395, 2399 (1991).

Under our constitutional plan, “[t]he States possess pri-

mary authority for defining and enforcing the criminal

law,” Engle v. Isaac, 456 U.S. 107, 128 (1982), and the

federal government has limited power to define and pun-

ish criminal activity. See Cohens v. Virginia, 19 US.

(6 Wheat.) 264, 428 (1821); Keller v. United States,

213 U.S. 138, 144 (1909).

While an offense may be created and “punished by

Congress, under its general authority to make all laws

necessary and proper to execute their delegated constitu-

tional powers,” United States v. Coombs, 37 US. (12

Pet.) 72, 78 (1838), Congress can criminalize activity

under the necessary and proper clause only when it is

pursuing an end which is clearly within its enumerated

powers. McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316. 423 (1819); see also Coombs, 37 U.S. (12 Pet.)

at 75. The Court has also made clear that Congress can-

not exercise authority not granted to it under the pre-

text of exercising its enumerated powers. McCulloch, 17

U.S. (4 Wheat.) at 423.

2. Congress’s power to criminalize activity under the

commerce clause is limited.by that clausé’s real and sub-

stantial Jimits. Thus, while Congress can regulate “ac-

tivity that is purely intrastate in character,” Fry v. United

States, 421 U.S. 542, 547 (1975), that activity must

“‘so affect interstate commerce, or the exertion of the

power of Congress over it, as to make regulation of [it]

appropriate means to the attainment of a legitimate end.’ ”

Perez v. United States, 402 U.S. 146, 151 (1971) (cita-

tion omitted). As the Court noted in Wickard v. Filburn,

317 U.S. 111, 125 (1942), local activity may be regu-

6

lated pursuant to the commerce power only “if it exerts

a substantial economic effect on interstate commerce.”

Accord Perez, 402 U.S. at 151-52. The Court has never

gone so far as to “declare[| that Congress may use a

relatively trivial impact on commerce as an excuse for

broad general regutation ef sate or private activities.”

Maryland v. Wirtz, 392 U.S. (8%, 196 n.27 (1968).

As a regulation of purely intrastate activity, the Gun-

Free School Zones Act does not meet these. standards.

Neither the Act nor the legislative history of the Crime

Control Act of 1990 (of which the Gun-Free School

Zones Act was a part) contains any reference to the

effect on interstate commerce of gun possession in the

schools. See Crime Control Act of 1990, Pub. L. No.

101-647, § 1702, 104 Stat. 4844-45; H.R. Rep. No.

101-681(1), 1OIst Cong., 2d Sess. 69 (1990), reprinted

in 1990 U.S.C.C.A.N. 6472. Although the Act was the

subject of hearings by a House subcommittee, the testi-

mony and other evidence received at that proceeding does

’ net establish that firearms possession in the schools has a

substantial effect on interstate commerce.

3. Recognizing that Congress, in enacting the Gun-

Free School Zones Act, failed to make any findings regard-

ing the impact of gun possession in and around schools

on interstate commerce and that the legislative record is

devoid of any evidence of an impact on interstate com-

merce, the United States argues that “judicial inquiry

into the rationality of legislation ‘must be restricted to

the issue whether any state of facts either known or which

could reasonably be assumed affords support for it.’ ”

Pet. Br. 16 (quoting United States v. Carolene Products

Co., 304 U.S. 144, 154 (1938)) (emphasis added).

This argument substitutes judicial surmise for legislative

facttinding and requires nothing less than the abdication

of meaningful judicial review. It also confuses the stand-

ard for reviewing the rationality of legislative means with

that for determining whether legislation is a permissible

end of the commerce power.

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At issue here, however, is not whether Congress has

chosen a lawful means to effectuate a concededly valid

goal, but whether it has the power to act at all. Precisely

because congressional regulation of purely intrastate ac-

tivity involves the exercise of the commerce power at its

outer limits, the Court has recognized that “the mere fact

that Congress has said when a particular activity shall be

deemed to affect commerce does not preclude further ex-

amination by this Court.” Katzenbach v. McClung, 379

U.S. 294, 303-04 (1964); see also Hodel v. Virginia

Surface Mining & Reclamation Assoc., 452 U.S. 264,

311 (1981) (Rehnquist, J., concurring). Moreover, in

reviewing congressional regulation of purely intrastate

activity, the Court has engaged in a searching review of

the legislative record to determine that a rational basis

exists for concluding that a regulated class of activity has

a substantial effect on interstate commerce. See Hodel,

452 U.S. at 277-80; Perez, 402 U.S. at 155-56; Katzen-

hach. 379 U.S. at 299-301; Heart of Atlanta Motel, Inc.

v. United States, 379 U.S. 241, 252-53 (1964).

Moreover, the Court has never suggested that in assess-

ing the validity of Congress's exercise of power under

the commerce clause, courts should assume that a state

of facts exists to support it. While courts properly assume

a state of facts when assessing the rationality of legislative

means. see FCC vy. Beach Communications, 113 S. Ct.

2096, 2101-02 (1993), this is because the necessary

and proper clause grants Congress broad discretion to

enact “all means which are appropriate, [and] which

are plainly adapted to” a legitimate end. McCulloch,

17 U.S. (4 Wheat.) at 421. But it does not extend to

the question of the validity of the end itself. The extreme

and unwarranted deference on the question of legislative

ends urged by the United States is antithetical to a

constitutional system which “created a Federal Govern-

ment of limited powers.” Gregory, 111 S. Ct. at 2399.

4. The requirement that Congress establish in the

legislative record that purely intrastate activity it is crim-

8

inalizing has a substantial effect on interstate commerce

is also supported by the substantial costs which the feder-

alization of traditional state crimes imposes on the federal-

state balance and rights granted under state law. Because

federalization offers the promise of a federal solution, it

diminishes the political accountability of state and local

officials and institutions. See Roger J. Miner, Federal

Courts, Federal Crimes, And Federalism, 10 Harv. J.L.

& Pub. Pol’y 117, 127 (1987). Moreover, federalization

imposes a significant threat to the States’ sovereign choices

and individual liberty. Many States have exercised their

“sovereign right to adopt in_ftheir] own Constitution[s]

individual liberties moré expansive than those conferred

by the Federal Constitution.” PruneYard Shopping Center

v. Robins, 447 U.S. 74, 81 (1980). Even where, as

here, charges brought under the Act merely duplicate a

State prosecution, the Act threatens individual tiberty be-

cause the rules of decision are provided by federal law

and therefore preempt state decisions to grant their citi-

zens more expansive fundamental liberties than those pro-

vided by the federal bill of rights.

ARGU MENT

A. The Constitution Grants Congress Only Limited Au-

thority To Define And Punish Criminal Activity

It is axiomatic that “[t]he Constitution created a Fed-

eral Government of limited powers.” Gregory v. Ash-

croft, 111 S. Ct. 2395, 2399 (1991); see also McCulloch

v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819).

Accordingly, “our Constitution establishes a system of

‘dual sovereignty between the States and the Federal Gov-

ernment.” Gregory, 111 S. Ct. at 2399. As James

Madison wrote:

The powers delegated by the proposed Constitu-

tion to the federal government are few and defined.

Those which are to remain in the State governments

are numerous and indeiinite. . . . The powers re-

served to the several States will extend to all the

9

objects which, in the ordinary course of affairs,

concern the lives, liberties, and properties of the

people, and the internal order, improvement, and

prosperity of the state.

The Federalist No. 45, at 296 (Isaac Kramnick ed. 1987)

(J. Madison); see also U.S. Const. amend. X (“The

powers not delegated to the United States by the Con-

stitution, nor prohibited by it to the States, are reserved

to the States respectively, or to the people.”).

By establishing a system of dual sovereignty and lim-

ited federal power, the framers sought to diffuse power

in order to protect the people from tyranny. As _ the

Court reaffirmed in Gregory, “[t}he ‘constitutionally man-

dated balance of power’ between the States and the Fed-

eral Government was adopted by the framers to ensure

the protection of ‘our fundamental liberties.’” 111 S. Ct.

at 2400 (quoting Atascadero State Hosp. v. Scanlon, 473

U.S. 234, 242 (1985) (quoting Garcia v. San Antonio

Metro. Transit Auth., 469 U.S. 528, 572 (1985) (Powell,

J.. dissenting) )); see also Coleman v. Thompson, 111

S. Ct. 2546, 2570 (1991) (Blackmun, J., dissenting)

(“federalism secures to citizens the liberties that derive

from the diffusion of sovereign power”). Thus, by divid-

ing power between the States and the federal government,

our Constitution “reduce[s] the risk of tyranny and abuse

from either front.” Gregory, 111 S. Ct. at 2400.°

* As James Madison wrote:

In a single republic, all the power surrendered by the people

is submitted to the administration of a single government; and

the usurpations are guarded against by a division of the gov-

ernment into distinct and separate departments. In the com-

pound republic of America, the power surrendered by the people

is first divided between two distinct governments, and then the

portion allotted to each subdivided among distinct and sepa-

rate departments. Hence a double security arises to the rights

of the people. The different governments will control each

other, at the same time that each will be controlled by itself.

The Federalist No. 51, at 321.

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v. United States, 2143 U.S. 138, 144 (1909) (“there is

in the Constitution no grant . . . to Congress” of the

police power ).

To be sure, Congress's power to define and punish

criminal activity is not limited to these textually explicit

grants. At least since United States v. Coombs, 37 U.S.

(12 Pet.) 72, 7% (1838), the Court has recognized that

an offense may be created and “punished by congress,

under its general authority to make all laws necessary and

proper to execute their delegated constitutional powers.”

The numerous federal offenses contained throughout the

Uinited States Code are a strong testament to Congress's

broad power to criminalize activity under the necessary

and proper clause.

Nonetheless, Congress can criminalize activity under

the necessary and proper clause on/y when it is. pursuing

an end which is clearly within its enumerated powers."

See McCulloch, 17 U.S. (4 Wheat.) at 421, 423. Since

McCulloch, the Court has repeatedly reaffirmed that Con-

gress, in creating and punishing criminal offenses, cannot

exceed its delegated powers. For example, before con-

struing the criminal statute at issue in Coombs the Court

stated:

[I jt seems highly important, if not indispensable, to

say a few words as to the constitutional! authority of

congress to pass the same. For if, upon a just inter-

pretation of the terms thereof, congress have exceeded

* As the Court stated in McCulloch:

[Wie think the sound construction of the constitution must

allow to the national legislature that discretion, with respect

to the means by which the powers it confers are to be carried

into execution, which will enable that body to perform the

high duties assigned to it, in the manner most beneficial to

the people. Let the end be legitimate, let it be within the scope

of the constitution, and al] means which are appropriate, which

are plainly adapted to that end, which are not prohibited, but

consist with the letter and spirit of the constitution, are

constitutional ....

17 U.S. (4 Wheat.) at 421.

their constitutional authority, it will become our duty

to say so, and to certify our opinion on the points

submitted to us, in favor of the defendant

37 US. (12 Pet.) at 75. See also Perez v. United States,

$02 U.S. 146, 146-47 (1971): United States v. Darby,

312 U.S. 100, 118 (1941): Hodges v. United States, 203

U.S. 1, 16-20 (1906).

Consistent with this principle, the Court has repeatedly

construed federal criminal statutes to confine Congress to

its consttutional powers. See, e.g., United States v. Bass,

404 U.S. 336, 347-51 (1971); United States v. Five

Gambling Devices, 346 U.S. 441, 446-49 (1953) (Jack-

son, J. jorned by Frankturter-& Minton, Coormbs,

37 U.S. (12 Pet.) at 75 (“{I]f the section admits of two

interpretations, one of which brings it within, and the

other presses it beyond, the constitutional authority of

congress, it will become our duty to adopt the former

construction; because a presumption never ought to be

indulged, that congress meant to exercise or usurp any

constitutional authority, unless that conclusion is forced

upon the court by language altogether unambiguous.” ).

Thus, in Bass the Court affirmed the reversal of a

conviction obtained under 18 U.S.C App. § 1202(a)

which prohibited a convicted felon from “receiviing},

possess|ing|, or transport{ing] in commerce or affecting

commerce any firearm.” 404 U.S. at 337-39. In

Bass, the United States neither alleged in the indictment

nor showed at trial that the firearms possessed by Bass

“had been possessed ‘in commerce or affecting com-

merce.” /d. at 338. Recognizing that “{a]jbsent proof of

some interstate Commerce nexus in each case, § 1202(a)

dramatically intrudes upon traditional state criminal juris-

diction,” the Court interpreted that statute to prohibit

conviction absent proof by the United States that the

gun Bass possessed “was moving interstate or on an :nter-

State facility, or if the possession affects commerce.” /d.

at 350.

13

i. The Commerce Clause Does Not Authorize Congress’s

Enactment Of The Gun-Free School Zones Act

As the foregoing demonstrates, Congress’s power to

criminalize activity under the commerce clause is limited

hy the scope of that power. Although this Court has

sanctioned a broad use of the commerce power, its deci

sions nonetheless make clear that the commerce clause

has real and substantial limits. Were it otherwise, it

would be meaningless to speak of a “Federal Govern

ment of limited powers.” See Gregory, 111 S. Ct. at

200

Accordingly, while Congress can regulate “activity that

is purely intrastate in character,” Fry v. United States,

421 U.S. $42, 547 (1975), that activity must, as the

LInited States acknowledges, see Pet. Br. 12, “‘so affect

interstate commerce, or the exertion of the power of

Congress over it, as to make regulation of [it] appropriate

means to the attainment of a legitimate end.” Perez \

United States, 402 U.S. 146, 151 (1971) (quoting

United States v. Wrightwood Dairy Co., 315 U.S. 110,

119 (1942)). As the Court noted in Wickard v. Filburn,

317 U.S. 111, 125 (1942), local activity may be regu

lated under the commerce power only “if it exerts a

substantial economic effect on interstate commerce.”

Accord Perez, 402 U.S. at 151-52; Katzenbach v. Mi

Clune. 379 U.S. 294, 302 (1964); Heart of Atlanta

Motel. Inc. v. United States, 379 U.S. 241, 258 (1964)

Where Congress regulates a class of activitics, which in

the aggregate substantially affects interstate commerce

“the courts have no power ‘to excise, as trivial, individual

instances’ of the class.” Perez, 402 U.S. at 154 (quoting

Maryland v. Wirtz, 392 U.S. 183, 193 (1968)). But

the Court has never gone so far as to “declare{| that

Coneress may use a relatively trivial impact on commerce

as an excuse for broad general reguiation of stale o1

private activities.” Wirtz, 392 U.S. at 196 n.27

The Court has also long made clear that Congress

cannot exercise authority not granted to it by the Con

14

stitution under the pretext of exercising its enumerated

powers. As the Court stated in McCulloch:

|Sjhould congress, under the pretext of executing its

powers, pass laws for the accomplishment of objects

not entrusted to the government|,| it would become

the painful duty of this tribunai, should a case

requiring such a decision come before it, to say,

that such an act was not the law of the land.

McCulloch, 17 U.S. (4 Wheat.) at 423. Thus, in order

to criminalize conduct under the commerce clause, Con-

cress Must be regulating interstate commerce. Congress

cannot, under the guise of regulating interstate commerce,

legislate beyond its delegated authority. And Congress’s

regulation of intrastate activity must reach activity that

has a real and “ ‘substantial economic effect on interstate

commerce.’” Perez, 402 U.S. at 152 (quoting Wickard,

317 U.S. at 125).

The Gun-Free School Zones Act plainly does not meet

these standards. The nature of the conduct it criminalizes

(simple possession of a gun in or near a school) has

no obvious connection to interstate commerce.’ The Act

itself. which was enacted as Section 1702 of the Crime

Control Act of 1990. P.L. 101-647, 104 Stat. 4844-45,

contains no findings concerning the effect of firearm pos-

session in the schools on interstate commerce. See id.

Nor did the report which accompanied the Crime Control

7 Bass suggests that Lopez’s conviction could be sustained if the

United States had proved that the firearm Lopez possessed had a

nexus to interstate commerce, See 404 U.S. at 350. Amici acknowl-

edge that the parties stipulated below that an agent of the Bureau of

Alcoho!, Tobacco and Firearms was prepared to testify that Lopez’s

firearm was manufactured outside of Texas. See Pet. App. 53a.

The indictment, however, did not allege that Lopez’s offense had

any nexus to interstate commerce. See id. Because an indictment

cannot be amended except by the grand jury itself, and this vari-

ance between the allegations of the indictment and this portion of

the government’s proof would be substantial, Lopez’s conviction

cannot be sustained on that ground. See Stirone v. United States

361 U.S. 212, 215-19 (1960). Accordingly, Lopez’s conviction can

only be sustained if gun possession in and around schools substan-

tially affects interstate commerce.

15

Act discuss the impact on interstate commerce caused

by firearms in the schools. See H.R. Rep. No. 101-681(1),

lOlst Cong., 2d Sess. 69 (1990), reprinted in 1990

U.S.C.C.A.N. 6472, Indeed, as the court of appeals

noted, the report did not “even mention the Gun-Free

School Zones Act.” Pet. App. 34a; see also H.R. Rep.

No. 101-681(1). Moreover, while the Act was the sub-

ject of a hearing by a House subcommittee, this hearing

does not remotely establish that firearms possession in the

schools has a substantial effect on interstate commerce.

Indeed, the legislative record indicates that Congress did

not view itself as doing anything other than regulating

violent criminals. See generally Gun-Free School Zones

Act of 1990: Hearing Before the Subcomm. on Crime of

the House Comm. on the Judiciary, 101st Cong., 2d Sess.

(1990) (Hearing).

It is noteworthy that the United States does not attempt

to support the Act based on the statistical evidence received

at the hearing. While these statistics unquestionably docu-

ment individual instances of human tragedy, this alone

does not render the underlying activity a permissible

end of Congress’s power to regulate interstate commerce.*®

See, e.g., Cohens, 19 U.S. (6 Wheat.) at 426 (“Con-

gress has no general right to punish murder committed

within any of the states.”). Rather, under our constitu-

tional scheme, “[t]he States possess primary authority for

* Amici Center to Prevent Handgun Violence eft a/. recount that

“sixty-five students and six school employees—-were killed with

guns at schools” and 201 persons were wounded during the aca-

demic years 1986-90. See Br. Am. Cur. Center to Prevent Handgun

Violence et a’. 19. But with the national population of students,

teachers, and employees exceeding fifty million people, see U.S.

Bureau of the Census, Statistical Abstract of the United States

1993 148 (1993) (Table No. 223); id. at 162 (Table No. 248), these

tragedies, even when aggregated over a four year period, do not

demonstrate a substantial effect on interstate commerce. Indeed.

statistics provided at the hearing indicated that fifteen States had

n® incidents and tha*® more than half the incidents occurred in only

six States. See Heering at 82-83.

16

defining and enforcing the criminal law.” FEnele, 456

U.S. at 128.

Rather than rely on the statistical evidence presented

at the hearing, the United States seeks to sustain” the

Statute by arguing that “[t]he economic consequences of

criminal behavior are substantial and, through the mech-

aumism of insurance, spread throughout the population.”

Pet. Br. 17 (citing United States v. Evans, 928 F.2d 858,

S62 (9th Cir. 1991)) (footnote. omitted), Contrary

to the United States’ suggestion, this “rather tenuous

nexus,” vans, 928 F.2d at 862, is insufficient to support

the broad police power which the United States urges

this Court to sanction. See Pet. Br. 44. Long before

this nation’s founding, insurers were underwriting the

perils associated with crime through life and fire insurance

policies. See George Richards, A Treatise on the Law of

Insurance, S$ 8-9 (2d ed. 1904). Nonetheless, the

spreading of risk through the mechanism of insurance has

never been viewed as being a sufficient justification for

the federalization of traditional intrastate crimes. And

for good reason: such @ principle would have no limit

and would negate the structural protections of our fed-

eral system.”

Amici understand the tragedy which each incident of

gun violence in the schools involves. But the tragedy is

*The Center to Prevent Handgun Violence also asserts that

because the aforementioned firearm incidents cost society approxi-

mately $33.5 million dollars over a four year period, Congress

would have been justified in “determin(ing| that gun possession

in and around schools affects interstate commerce.” See Br, Am.

Cur. Center to Prevent Handgun Violence et al, 20. Congress, of

course, made no such determination. In any event, when Congress

regulates purely intrastate activity, the standard is not merely

whether the activity affects commerce but whether it has a sub-

stantial economic effect on interstate commerce. See, ¢.g., Wickard,

317 U.S. at 125; Perez, 402 U.S. at 151-52. This cost ($8.5 million

annually) is approximately .00014% of the nation’s annual Gross

National Product of six trillion dollars, See Budget of the United

Staies Government: Fiseal Year 1994 6.

17

one of violence against individuals, not interstate com-

merce. Unquestionably the act of striking down a con-

vressional enactment is a serious one, to be taken only

when circumstances clearly warrant. But there are other

values at stake here as well, notably the preservation of

our federal system. Accordingly, where the conduct crim

inalized by Congress bears no apparent connection to

iferstate commerce, and where neither Congress in the

legislative process nor the federal government at trial has

shown the impact of the conduct on commerce, the con-

viction must be invalidated on, the ground that Congress

has exceeded its commerce power."

(. The United States’ Standard Of Review Requires The

Abdication Of Meaningful Judicial Review And Con-

flates The Standard For Determining The Validity Of

Legislative Means With That For Determining Whether

Legislation Is A Permissible End Of The Commerce

Power

Recognizing that Congress, in enacting the Gun-Free

School Zones Act, failed to make any findings regarding

the impact of gun possession in and around schools on

‘The United States also argues that Congress could rati

ally conclude that gun possession in the schools substantially affects

interstate commerce because gun violence interferes with learning

and the future productivity of students when they enter the wo-k

force. See Pet. Br. 19-25. While this cause and effect theory is not

implausib.e, like the insurance theory it is a principle without limit

and has no support in the legislative record. As a representative

the American Academy of Pediatrics testified, “Let me conclude by

making a plea for the need for continuing to collect data——and |

think that was also mentioned earlier this morning. The data

Scarce and sketchy.” Hearing at 52. This witnesa’s prepared re

marks stated

“iystematic and sustained attention to the problem has b

lacking. Part of the reason for this is the scarcity of dat

neerning the involvement of children in the gun epidem

and a lack of necessary detail in the data that are availab

The Acaden y urges Congress to take steps to ensure tl

proper records are kept, so that the gravity of the situation ca

be properly assessed

ld. at 59-60

18

interstate commerce, the United States argues that “the

congressional ‘finding’ can very properly be—and often

is—merely implicit in the enactment itself.” Pet. Br.

17 n.8. In support of its notion that courts should imply

such findings, the United States argues that “ ‘[t}he perti-

nent inquiry therefore is . . . whether Congress could

rationally conclude that the regulated activity affects inter-

state commerce,’ ” id. (quoting Hodel v. Indiana, 452 U.S.

314, 324 (1981)), and that “judicial inquiry into the

rationality of legislation ‘must be restricted to the issue

whether any state of facts either known or which could

reasonably be assumed affords support for it.” Pet. Br.

16 (quoting United States v. Carolene Products Co., 304

U.S. 144, 154 (1938) ) (emphasis added).

This argument, however, substitutes judicial surmise

for legislative factfinding and requires nothing less than

the abdication of meaningful judicial review. Moreover,

it rests on the faulty premise that the standard for review-

ing the rationality of legislative means is the same as that

for determining whether legislation constitutes a permissible

end of the commerce power. In this case the question is

not whether Congress has chosen an appropriate means

of carrying out a permissible goal, but whether Congress

has the power to act at all.

Contrary to the United States’ argument, the Court has

recognized the necessity of a meaningful standard of re-

view when called upon to decide whether congressional

regulation of purely intrastate activities is consistent with

the limits imposed by the commerce clause. Indeed, it is

precisely because congressional regulation of purely intra-

state activity (which has traditionally been the subject of

state regulation) involves the exercise of the commerce

power at its outer limits that a meaningful standard of re-

view is necessary. Otherwise, Congress would be left to

determine for itself the outer limits of its power. The

Court has thus recognized that:

Of course, the mere fact that Congress has said when

particular activity shall be deemed to affect com-

merce does not preclude further examination by this

19

Court. But where we find that the legislators, in

light of the facts and testimony before them, have a

rational basis for finding a chosen regulatory scheme

necessary to the protection of commerce, our inves-

tigation is at an end.

Katzenbach, 379 U.S. at 303-04. -See also Hodel, 452

U.S. at 311 (Rehnquist, J., concurring) (“[S]imply be-

cause Congress may conclude that a particular activity

substantially affects interstate commerce does not neces-

sarily make it so. Congress’ findings must be supported

by a ‘rational basis’ and are reviewable by the courts.”’).

Thus, in reviewing congressional regulation of purely in-

trastate activity, the Court has engaged in a searching

review of the legislative record to determine whether a

rational basis exists for concluding that regulated activity

has a substantial effect on interstate commerce. See

Hodel, 452 U.S. at 277-80: Perez, 402 U.S. at 155-56;

Katzenbach, 379 U.S. at 299-301:\ Heart of Atlanta

Motel, 379 U.S. at 252-53.

As these cases demonstrate, when Congress seeks to

regulate purely intrastate activity, it must provide courts

with a record which shows that the regulated activity has

a substantial effect, and not just a trivial impact, on inter-

State commerce. In the absence of such a record, review-

ing courts simply cannot determine whether Congress is

exercising powers which the Constitution granted it.

By suggesting that courts should, in effect. speculate as

to why Congress might have enacted a particular piece

of legislation, the United States argues for no less than

the abdication of the duty of federal courts. recognized

since McCulloch and Coombs, to invalidate legislation

which exceeds Congress’s constitutional authority. See,

e.g., McCulioch, 17 U.S. (4 Wheat.) at 423; Coombs,

37 U.S. (17 Pet.) at 75. The United States’ reasoning

is truly extraordinary given that one of the principal jus-

tifications for the judiciary’s deference to legislatures is

the latter’s superior resources and factfinding ability. See,

e.g., City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416, 456 n.4 (1983) (O’Connor, J.,

dissenting). .

20

The United States’ position would result in courts

upholding congressional action even when, in reality, the

regulated activity has no substantial effect on commerce.

And its practical consequence is to transform the com-

merce clause into a general police power, a power which

the Constitution clearly did not grant to Congress. See

Keller, 213 U.S. at 144; Cohens, 19 U.S. (6 Wheat.) at

428. The United States all but admits as much. Reason-

ing that because “[t]he economic consequences of crimi-

nal behavior are substantial and, through the mechanism

of insurance, spread throughout the population,” the

United States argues that “Congress could rationally con-

clude that incidents of violent crime, wherever they occur,

can be expected to affect the functioning of the national

economy.” Pet. Br. 17 (footnote omitted); see also id.

at 44 (“we believe that violent crime in general imposes

sufficient burdens on interstate commerce to permit Con-

gress very broad latitude to enact measures rationally

designed to reduce its incidence” ).

If, as the United States argues, Congress need only

be capable of rationally concluding that particular activ-

ity “can be expected” to “affect the functioning of the na-

tional economy,” id. at 17, then every crime can be

federalized. Indeed, Congress could well make double

parking a federal offense. See, e.g., James L. Buckley,

Introduction—Federalism and the Scope of the Federal

Criminal Law, 26 Am. Crim. L. Rev. 1737, 1738 (1989)

(“today it is virtually impossible to conjure up any hu-

man activity . . . that some court will not find to burden

interstate commerce” )."

11 Judge Buckley suggested that daydreaming might be a possible

exception to his comment that almost all human activity will be held

to burden interstate commerce. See 26 Am. Crim. L. Rev. at 1738.

But under the United States’ standard of review, a court reviewing

a congressional prohibition of daydreaming would likely have to

sustain the statute. It is, of course, entirely rational! to assume

that daydreaming reduces economic productivity and thus has a

substantial effect on interstate commerce. See Pet. Br. 16 (argu-

ing that “judicial inquiry into the rationality of legislation ‘must

be restricted to the issue whether any state of facts either known

or which could reasonably be assumed affords support for it’ ”)

Savane

ee

21

The decisions of this Court, while admittedly establish-

ing a principle of judicial deference to congressional en-

actments under the commerce power, have never gone so

far as to suggest that courts should simply assume that a

state of facts exists which supports a conclusion that a

class of activities substantially affects interstate commerce.

Thus, while the Court stated in Katzenbach that formal

findings are not necessary to sustain legislation enacted

‘under the commerce clause, see 379 U.S. at 299, there

(as well as in the companion case, Heart of Atlanta

Motel), Congress had made an extensive legislative

record which was “replete with testimony of the burdens

placed on interstate commerce by racial discrimination in

restaurants.” IJd.; see also Heart of Atlanta Motel, 379

U.S. at 252 (noting that “[w]hile the Act as adopted

carried no congressional findings the record of its passage

through each house is replete with evidence of the burdens

that discrimination by race or color places upon interstate

commerce”); id. at 253 (“voluminous testimony presents

overwhelming evidence that discrimination by hotels and

motels impedes interstate travel” ).

Likewise, the Court’s dictum in Perez that Congress

need not “make particularized findings in order to legis-

late,” 402 U.S. at 156, does not support the United

States. Congress’s authority to enact the loansharking

Statute challenged in Perez was amply supported by an

extensive legislative record which included hearings and

a report detailing loansharking’s substantial effect on in-

terstate commerce. /d. at 155-56. The Court’s dictum

merely recognized that, under these circumstances, the

findings made by Congress were pro forma in nature.

Perez thus provides no authority for the United States’

(quoting Carolene Products, 304 U.S. at 154). The absence of

any legislative record evidencing daydreaming’s substantial effect

on interstate commerce would be no bar either, so long as a study

or article could be found which would rationally support the con-

clusion that daydreaming substantially affects interstate com-

merce. See Pet. Br. 17 n.9 (quoting Ruttenberg, The Limited

Promise of Public Health Methodologies To Prevent Youth Vio-

lence, 103 Yale L.J. 1885, 1887 n.11 (1994) ).

22

assertion that courts should invent a rational basis for

concluding that a regulated activity substantially affects

interstate commerce.

Notwithstanding the Perez dictum, amici respectfully

submit that Congress must make findings when it crim-

inalizes purely intrastate conduct. Because decisions to

regulate such activity have been traditionally the province

of the States, findings serve a purpose analogous to the

clear statement rule by ensuring that Congress “has in fact

faced, and intended to” bring about “a significant change

in the sensitive relation between federal and state criminal

jurisdiction.” Bass, 404 U.S. at 349. But “simply because

Congress may conclude that a particular activity sub-

stantially affects interstate commerce does not necessarily

make it so.” Hodel, 452 U.S. at 311 (Rehnquist, J.,

concurring). A legislative record is therefore also required

to establish that the intrastate activity Congress is crimi-

nalizing does indeed have a substantial effect on interstate

commerce. A record thus serves the critical function of

demonstrating that Congress has not exceeded its constitu-

tional authority.”

Ignoring the critical purpose that both findings and

a record serve in judicial review of whether Congress is

exceeding its powers, the United States argues that “judi-

cial inquiry into the rationality of legislation ‘must be

restricted to the issue whether any state of facts either

known or which could reasonably be assumed affords sup-

port for it.” Pet. Br. 16 (quoting Carolene Products,

304 U.S. at 154). This argument is flawed for several

reasons.

As an initial matter, amici note that the statute at issue

in Carolene Products prohibited the shipment of filled

milk in interstate commerce. 304 U.S. at 146 & n.1. It

12 This is of particular importance where, as here, the activity

Congress is criminalizing touches upon another area of traditional

state and local authority—education. See, e.g., Board of Ed. v.

Rowley, 458 U.S. 176, 208 n.30 (1982); Epperson v. Arkansas, 393

U.S. 97, 104 (1968).

23

therefore clearly was a permissible end of the commerce

power.

Of greater significance, the United States simply con-

flates the standard for reviewing legislative means with that

for determining whether the legislation constitutes a permis-

sible end of congressional power. The two, however, are

not the same. As the Court noted in McCulloch, the

necessary and proper clause vests in the Congress broad

discretion to enact “all means which are appropriate,

which are plainly adapted to” a “legitimate” end. 17

U.S. (4 Wheat.) at 421. Courts must thus grant Con-

gress broad deference in reviewing the means it has

adopted in pursuit of its constitutionally authorized ends.

But such deference does not extend to reviewing the

question of whether Congress has acted within the scope

of its constitutionally delegated powers. As stated above,

the Constitution does not grant Congress broad discretion

to legislate under the authority of a police power for

the general welfare, see Keller, 213 U.S. at 144, or to

punish felonies generally. Cohen, 19 US. (6 Wheat.) at

428. Rather, its authority is limited to its delegated

powers and those “end[{s]” which are “legitimate, [and]

within the scope of the constitution.” McCulloch, 17

U.S. (4 Wheat.) at 421. Extreme and unwarranted defer-

ence to Congress on the question of ends, rather than

means, is antithetical to a constitutional system which

“created a Federal Government of limited powers.”

Gregory, 111 S. Ct. at 2399.

While the Court has characterized the standard for

reviewing whether Congress is pursuing a permissible end

as requiring “defer[ence] to a congressional finding that

a regulated activity affects interstate commerce, if there

is any rational basis for such a finding,” Hodel v. Vir-

ginia Surface Mining & Reclamation Ass'n, 452 US.

264, 276 (1981), it has likewise noted that this rational

basis must be supported by the “facts and testimony”

before Congress. See, e.g., Katzenbach, 379 U.S. at 303-

04. Consistent with this recognition, the Court frequently

has stated that “the mere fact that Congress has said

24

when particular activity shall be deemed to affect com-

merce does not preclude further examination by this

Court.” /d. at 303. Thus, in reviewing regulations of

intrastate activity under the commerce clause, the Court

has engaged in a searching review of the legislative record

to determine whether it rationally supports the conclusion

that the regulated activity has a substantial effect on

interstate commerce. See id. at 299-301; Hodel, 452 US.

at 277-280; Perez, 402 U.S. at 155-56; Heart of Atlanta

Motel, 379 U.S. at 252-53.”

As these authorities demonstrate, the United States is

incorrect in arguing that, in the context of determining

whether legislation is within the permissible ends of the

commerce power, rational basis review is satisfied by

judicial speculation as to whether a state of facts might

exist which would support Congress’s exercise of this

power. In the context of determining whether legislation

is within the scope of the commerce power, the rational

basis standard requires that Congress have considered

evidence that demonstrates that the regulated activity

has a substantial effect on commerce. Thus, where in

the course of legislative deliberations, conflicting evidence

is presented as to a regulated activity’s substantial effect

on interstate commerce, a court must defer to a con-

gressional finding that it has such an effect.* But where

13[n Hodel, for example, the Court noted that “[t]he Surface

Mining Control and Reclamation Act became law only after six

years of the most thorough legislative consideration” and that

“Tejommittees of both Houses of Congress held extended hearings

during which vast amounts of testimony and documentary evidence

about the effects of surface mining on our Nation’s environment

and economy were brought to Congress’s attention.” 452 U.S. at

277-79; see also Perez, 402 U.S. at 155-56 (detailing legislative

record establishing loansharking’s substantial effect on interstate

commerce).

14 Likewise, where, as in Katzenbach and Heart of Atlanta Motel,

the legislative record extensively documents that a regulated ac-

tivity has a substantial effect on interstate commerce such that

any findings would be pro forma in nature, it may be appropriate

to imply a finding.

at

¥

5

?

25

Congress has failed to make an adequate record, the

Standard does not allow a court to speculate as to the

existence of a state of facts which would support Con-

gress’s power to act.”

To hold otherwise would create a strong incentive for

Congress to refrain from factfinding altogether. This is

hardly a desirable result given that factfinding is likely

to provide Congress with additional information as to

the scope of a purported problem and_ thus indicate

whether it substantially affects interstate commerce, and

if it does, what means are appropriate for addressing it.

And contrary to the assertions contained in the brief

amicus curiae filed by various members. of Congress, see

Br. Am. Cur. 16 Members of the United States Senate

et al. 2, it is hardly an onerous requirement to place on

Congress given that it routinely holds hearings and makes

findings. See, e.&., Hodel, 452 U.S. at 277-80; 30 U.S.C.

§ 201 (setting forth congressional findings showing sur-

face mining’s substantia] effect on interstate commerce) ;

Perez, 402 USS. at 155-56; Consumer Credit Protection

Act, Pub. L. 90-321. § 201 (setting forth congressional

findings showing loansharking’s substantial effect on in-

terstate commerce ) ."*

'’ The United States confuses two distinct principles jn arguing

that FCC v. Beach Communications, 113 S.Ct. 2096 (1993), is

applicable here. Legislative classifications such as those at issue in

Beach are reviewed more deferentially because of the broad discre-

tion vested in legislatures to choose “the means by which powers

[constitutionally] confer[réd] are to be carried into execution.”

McCulloch, 17 U.S. (4 Wheat.) at 421. But because Congress does

not possess a general Police power, “the connection with interstate

commerce is itself a jurisdictional prerequisite for any substantive

legislation by Congress under the Commerce Clause.” Hodel, 452

U.S. at 311 (Rehnquist, J., concurring). Accordingly, “Congress

must show that the activity it seeks to regulate has a susbtantial

effect on interstate commerce.” Jd. at 313.

16 Amici note that after the court of appeals’ decision, the Senate

passed legislation which amended Section 922(q) to include find-

ings. See Pet. Br. 6 n.2. These findings, however, are entitled to

no weight because they are not supported by any record. Moreover,

this post hoc procedure does not Satisfy the Constitution’s require-

26

D. Because The Federalization Of Traditional State

Crimes Imposes Substantial Costs On The Federal-

State Balance And Rights Granted Under State Law,

Courts Properly Require Congress To Show That

Regulated Activity Has A Substantial Effect On Inter-

state Commerce

The United States also dismisses the court of appeals’

reliance on the line of cases, beginning with Bass, in which

this Court has held that “unless Congress conveys its

purpose clearly, it will not be deemed to have significantly

altered the federal-state balance.” See Pet. Br. 27-31

(quoting Bass, 404 U.S. at 349). Noting that “Congress

has far greater latitude . . . when its Acts are applied to

the activities of private parties who are incidentally sub-

ject to concurrent state regulation” rather than to the

States as States, Pet. Br. 28, the United States argues that

“Congress is not obliged to explain its reasons for legislat-

ing, to justify its decisions with findings, or to identify the

constitutional source of its authority to act.” Jd. at 30

(citation and footnote omitted). This reasoning ignores

the significant costs imposed on the federal-state balance

by congressional decisions to federalize traditional state

crimes, including the enactment of the Gun-Free School

Zones Act.”

First, in amici’s own experience, enactments such as

the Gun-Free School Zones Act interject federal officials

into longstanding and close working relationships which

ment of passage by both Houses and presentment to the President.

See U.S. Const. art. I, §7; INS v. Chadha, 462 U.S. 919, 945-51,

954 n.18 (1983).

17 The court of appeals recognized that the clear statement rule

is a rule of statutory construction. See Pet. App. 48a. Nonetheless,

the principle which underlies the rule—that under our constitu-

tional scheme, States are also sovereigns entitled to govern “ ‘all

the objects which, in the ordinary course of affairs, concern the

lives, liberties, and properties of the people, and the internal order,

improvement, and prosperity of the State,’” Gregory, 111 S.Ct.

at 2399 (quoting The Federalist No. 45, pp. 292-93 (C. Rossiter

ed. 1961) (J. Madison) )—likewise suggests that courts must have

a meaningful way of determining whether Congress has exercised

power in excess of its constitutional limits.

27

exist between local school administrators, police and pros-

ecutors. The friction caused by federalizing traditional

state crimes might be tolerable—assuming these crimes

had a substantial effect on interstate commerce—if the

federal government had the resources and commitment

to prosecute these cases. See Roger J. Miner, Federal

Courts, Federal Crimes, and Federalism, 10 Harv. J.L. &

Pub. Pol’y, 117, 126 (1987) (noting that federalization of

state crimes has led to “unseemly ‘turf’ wars”). But as

Judge Miner has also noted, “federal law enforcement

agencies, prosecutors and courts cannot keep pace with

the proliferation of federal crimes.” Jd. It is not clear

the federal government has the resources to prosecute

such criminal behavior with any regularity. See Hearing

at 72-73 (noting that there are over 100,000 public

schools nationwide and only 1,800 ATF agents). Insofar

as the federalization of traditional state crimes offers the

promise of a federal solution, it may very well induce

complacency in the citizenry. Cf. Miner, Federal Courts,

Federal Crimes, and Federalism, 10 Harv. J.L. & Pub.

Pol’y at 125.”

18 The federalization of traditional state crimes has also been

extensively criticized for the potential burdens it places on the

federal courts. See Miner, Federal Courts, Federal Crimes, and

Federalism, 10 Harv. J.L. & Pub. Pol’y at 118 (noting that with

the federalization of traditional state crimes, “we hive the mak-

ings of a glut that threatens to overwhelm the federal courts—

courts that were designed to handle a limited number of crimes

affecting national interests”) ; Henry J. Friendly, Federal Jurisdic-

tion: A General View 58 (1973) (urging that “[t]he question

whether federa) criminal prosecutions have not greatly outreached

any true federal interest . . . deserves the most serious examina-

tion, particularly in light of the tremendous increase in criminal

filings....”). Cf. Report of the Federal Courts Study Committee

35-37 (1990) (criticizing the growth of federal criminal filings—

particularly federal narcotics cases which could be prosecuted as

effectively under state law—and noting that “[b]Joth the principles

of federalism and the long-term health of the federal judicial sys-

tem require returning the federal courts to their proper, limited

role in dealing with crime”); Miner, Federal Courts, Federal

Crimes, and Federalism, 10 Harv. J.L. & Pub. Pol’y at 124-25

(noting that between 1984 and 1985, “the Southern District of

28

More significantly, federalizing traditional state crimes

only serves to diminish the political accountability of state

and local governments. Such legislative action encour-

ages the citizenry to run to Congress to address the latest

cause of the day, no matter how tenuous its nexus to

interstate commerce and no matter how ill-suited the sub-

ject matter is to being regulated through uniform federal

rules. In the process, it reduces state and local legisla-

tures to the role of “bench-players” in the governing

process. This is truly a regrettable consequence for a

constitutional system which has catalogued the many ben-

efits of federalism as including, inter alia, “a decentralized

government that will be more sensitive to the diverse

needs of a heterogenous society,” the “increase[d] oppor-

tunity for citizen involvement in democratic processes,”

and the “allow[ance] for more innovation and experimen-

tation in government.” Gregory, 111 S.Ct. at 2399 (cita-

tions omitted).

The federalization of traditional state crimes also

diminishes the accountability of local law enforcement

officials. As Judge Miner has written:

The citizenry increasingly has been conditioned to

turn to federal law enforcement and to the federal

courts as the first line of defense against anti-social

conduct. What we are witnessing is an abdication

of responsibility for self-government... . In the face

of municipal corruption, it is easy to send for the

‘federals.” If narcotics are sold on the street corners

of a major city, it is a simple matter to invoke high-

profile federal criminal prosecution. When loan

sharks and racketeers infest a municipality, local

law enforcement efforts can be relaxed if federal help

is on the way.

New York sustained an increase in its total criminal caseload of

51.5%, from 695 to 1,053 cases,” and asking “[f]rom whence are

to come the necessary court facilities and personnel?’’).

These and other problems created by the federalization of tradi-

tional state crimes were extensively discussed at a conference

held by the U.S. Attorney General on March 7, 1994.

29

But something is lost in the process—the traditions

of democratic self-government and of individual

involvement and neighborly concern that have been

the hallmarks of our society.

Federal Courts, Federal Crimes, And Federalism, 10

Harv. J.L. & Pub. Pol’y at 127; see also Friendly, Federal

Jurisdiction: A General View at 58 (“Is it right to have

sO many areas where local law enforcement officers can

neglect their responsibilities on the basis of an expectation

that the ‘federals’ will do the job?”).

While the aforementioned consequences of federalizing

traditional state crimes are serious enough to require that

Congress demonstrate that it is not acting beyond its

delegated powers, even more significant is the threat to

state constitutional protections of individual rights posed

by enactments such as the Gun-Free School Zones Act.

This threat exists, even where, as here, charges brought

under the Gun-Free School Zones Act merely duplicate

a state prosecution. See Pet. App. 2a n.1.

Because the Gun-Free School Zones Act is a federal

statute, prosecutions brought under it are governed by

federal law. But as the Court has frequently recognized,

the States possess the “sovereign right to adopt in [their]

own Constitution[s] individual liberties more expansive

than those conferred by the Federal Constitution.” Prune-

Yard Shopping Center v. Robins, 447 U.S. 74, 81 (1980).

See also Oregon v. Hass, 420 U.S. 714, 719 (1975);

Sibron v. New York, 392 U.S. 40, 60-61 (1968); Cooper

v. California, 386 U.S. 58, 62 (1967); Latzer, State

Constitutions and Criminal Justice 2-5 (1991); Brennan,

State Constitutions and the Protection of Individual

Rights, 90 Harv. L. Rev. 489, 491 (1977). Across a

wide range of criminal law issues, many States have

adopted more expansive interpretations of individual

rights under their state constitutions and statutory law

than is required by the federal constitution.” See gen-

19 As Justice Brennan has noted, the “[r]jediscovery by state

supreme courts of the broader protections afforded their own

citizens by their state constitutions . . . is probably the most

30

erally Latzer, State Constitutions and Criminal Justice;

Brennan, State Constitutions and the Protection of In-

dividual Rights, 90 Harv. L. Rev. at 498-501.

State decisions to provide their citizens with constitu-

tional and statutory protections which exceed those of the

federal constitution are surely “decision[s] of the most

fundamental sort for a sovereign entity.” Gregory, 111

S.Ct. at 2400. It is, after all, “[o]ne of the first duties of

government” to protect the civil liberties of its citizens.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163

(1803). Yet such state-created protections are, in effect,

preempted in any prosecution brought under the Gun-

Free Schoo! Zones Act because federal and not state law

provides the rules of decision. Thus, while the United

States simply ignores the threat to state sovereignty and

protections of individual rights posed by the federalization

of traditional state crimes, see Pet. Br. 27-32, that threat

compellingly demonstrates why Congress must be required

to establish that conduct it has criminalized has a sub-

stantial effect on interstate commerce. Requiring Con-

gress to make this showing is a small price to pay for

preserving our Constitution.

As the foregoing demonstrates, the court of appeals

properly held that courts should not “simply assume that

the concededly intrastate conduct [which Congress pro-

hibited here] substantially affects interstate commerce.”

Pet. App. 50a-5la. As amici have explained above, if

Congress is to criminalize intrastate activity, it must make

a record to show that the activity has a substantial effect

and not just a trivial impact on interstate commerce.

Because Congress failed to do so here, its enactment of

the Gun-Free School Zones Act was beyond its delegated

powers.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

important development in constitutional jurisprudence of our

times.” Nat’l L.J., Sept. 29, 1986 (Special Supplement), at S-1.

BARRY FRIEDMAN

VANDERBILT UNIVERSITY

SCHOOL OF LAW

Twenty-first Avenue South

Nashville, Tennessee 37209

(615) 322-2154

Of Counsel

July 19, 1994

31

Respectfully submitted,

RICHARD RUDA *

JAMES I, CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.,

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

la

APPENDIX

State Statutes Prohibiting Gun Possession In Schools And

On School Property:

1994 Ala. Acts 817, § 1

1994 Ariz. Sess. Laws 109, § 1

Ark. Code Ann. § 5-73-119(a){2) (Michie 1993)

/ Cal. Penal Code § 626.9 (West 1994)

Colo. Rev. Stat. § 18-12-105.5 (1993)

Conn. Gen. Stat. Ann. § 53a-217b (West 1994)

Ga. Code Ann. § 16-11-127.1 (Michie 1992)

Fla. Stat. Ann. § 790.115 (West 1994); Fla. Stat.

Ann. § 810.095 (West 1994)

Idaho Code § 18-3302D (1994)

Ind. Code Ann. § 35-47-9-2 (Burns 1994)

Kan. Stat. Ann. § 21-4204(a)(4) (1993)

1994 Ky. Acts 391, § 1

Me. Rev. Stat. Ann. tit. 20-A, § 6552(1) (West

1993)

Md. Ann. Code art. 27, § 36A(a) (1993)

Mass. Ann. Laws ch. 269, § 10(j) (Law. Co-op.

1992)

Mich. Comp. Laws Ann. § 750.234d (1994)

Minn. Stat. § 609.66 Subd. Id (1993)

Miss. Code Ann. § 97-37-17 (1993)

Mo. Ann. Stat. § 571.030.1(8) (Vernon 1994)

1994 Neb. Laws 988, § 6

Nev. Rev. Stat. Ann. § 202.265 (Michie 1992)

N.J. Stat. Ann. § 2C:39-5(e) (West 1994)

N.M. Stat. Ann. § 30-7-2.1 (Michie 1994)

N.Y. Penal Law § 265.01(3) (McKinney 1994)

N.C. Gen. Stat. § 14-269.2 (1993)

N.D. Cent. Code § 62.1-02-05(1) (1993)

Ohio Rev. Code Ann. § 2923.122 (1993)

Okla. Stat. Ann. tit. 21, § 858 (West 1994); Okla.

Stat. Ann. tit. 21, § 1280.1 (West 1994)

Or. Rev. Stat. § 166.370 (1994)

Pa. Stat. Ann. tit. 18, § 912 (1993)

R.I. Gen. Laws § 11-47-60 (1993)

ee

deme Tete

Fe ee me tn CR EE a LER nati th ale Le te alate ele Ce nia eS

2a

S.C. Code Ann. § 16-23-430 (Law. Co-op. 1993)

S.D. Codified Laws Ann. § 13-32-7 (1994)

Tenn. Code Ann. § 39-17-1309 (1993)

Tex. Penal Code Ann. § 46.04(a)(1) (West 1993)

Utah Code Ann. § 53A-3-502 (1994)

Vt. Stat. Ann. tit. 13, § 4004 (1993)

Va. Code Ann. § 18.2-308.1 (Michie 1994)

Wash. Rev. Code § 9.41.280 (1992)

W.Va. Code § 61-7-lla (1994)

State Statutes Establishing Gun-Free School Zones:

Ill. Ann. Stat. ch. 720, para. 5/24-1 (Smith-Hurd

1994)

La. Rev. Stat. Ann. § 14:95.2 (1994)

Wis. Stat. Ann. § 948.605 (1993)